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Lord Hunt of Kings Heath: The noble Earl again raises an important issue. I hope to be able to clarify the views of the Government upon it and the reasons why the current wording of the Bill satisfies the needs. As drafted, the objective of including provisions for referral in circumstances where an employer would have considered dismissing is to cover the situation, as the noble Earl suggests, where, before the employer has had the opportunity to complete his investigation into the alleged misconduct or come to a firm conclusion that dismissal is appropriate, the individual retires or resigns. Until the employer completes that investigation, he
cannot conclude with any degree of certainty that he would have dismissed the individual. To reach such a conclusion would be premature.Although the employer should in principle undertake all necessary investigations, in practice it may not be possible for him always to conclude his inquiries. For example, if a child made an allegation of abuse, the employer would need to interview the child and seek any corroborative evidence available. He should also seek to obtain the individual's comments on the allegations. In circumstances where the employer has been able to obtain only one side of a story, it would be difficult for him to conclude that he would have dismissed the individual. He can only conclude that, as the present wording said, he would have considered dismissing the individual.
This does not give rise to an obligation to refer where only passing consideration was given to dismissal. Dismissal must be a real possibility or within a band of reasonable responses to the alleged misconduct. The obligation to refer does not arise where only fleeting consideration was given to whether dismissal was appropriate. If the present amendments seek to safeguard an individual from those eventualities, they therefore seem to be unnecessary, in particular taken with all the other safeguards in the Bill in relation to the procedures which have to be followed.
Lord Laming: I agree with the noble Earl, Lord Howe, that the law should be as clear as possible. It is for that reason that I believe that "to be minded" seems to have within it a presumption; whereas "would have considered" makes a claim that all the facts will be allowed before any decision is reached.
It should be remembered that the Secretary of State can commence the process of deciding whether someone should be listed only,
- "if it appears from the information submitted with a reference ... that it may be appropriate for the individual to be included in the list".
In other words, although the amendment might restrict the threshold for referral by an employer, it does not in any way restrict the position of the Secretary of State.
There is consistency in the way the provision is framed. I urge that the amendment be withdrawn.
Earl Howe: The Minister and the noble Lord have gone some considerable way to assuage my concerns. I am most grateful. It is helpful to have on the record that the phrase "would have considered dismissing him" will in practice be interpreted strictly in the way I sought to define.
However, I remain uneasy that the Bill contains terminology that at least in ordinary language seems inherently vague. Perhaps there is an argument from precedent, as the noble Lord said. But not having considered that precedent, I wonder whether it is a proper parallel to the situation envisaged in the Bill. If the guidance to be issued by the department will spell out the whole issue, there is a good argument for it to be spelt out on the face of the Bill. If we do not do so, in one breath we are inviting an employer to refer someone's name to the Secretary of State, even in a case where that would be manifestly inappropriate. For example, if an employer receives an allegation of child abuse, investigates it, and finds it to be wholly without foundation, he would be obliged, nevertheless, to refer the name of the alleged abuser to the Secretary of State because dismissal of the person had seemed a real possibility at the outset of the investigation. So the lack of clarity in the drafting of the Bill could lead to an absurdity, or worse, bearing in mind that having one's name referred to the Secretary of State is mortifying to anyone who is innocent. Where we are dealing with civil liberties, as we are here, we should have no truck with imprecise terminology.
I am sorry to say to the Minister that I do not find the answer entirely convincing. However, I am in large measure reassured. I shall reflect carefully on what has been said. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
11.45 a.m.
Earl Howe moved Amendment No. 3:
The noble Earl said: In the previous amendment I highlighted my concern that the Bill may unintentionally bring about a situation in which someone's name could be referred to the Secretary of State in quite inappropriate circumstances. However, we have here a paragraph which appears consciously to encourage the possibility of inappropriate referrals.
Clause 2(2)(d) provides that a childcare organisation must refer to the Secretary of State the name of someone whom it has suspended or provisionally transferred on the ground of misconduct before it has decided whether to transfer the person permanently or to dismiss him or her. As I have said, we are all in favour of closing as many loopholes as possible against those who might harm children. But the more I consider this paragraph the less desirable I think that it is; and the less I understand how it meshes in with the remainder of the Bill.
We can easily imagine the situation of an employee in a childcare organisation being subject to a malicious and wholly unfounded allegation of abuse. Nevertheless, the organisation feels duty bound to suspend that individual at the outset of the investigation as a precautionary measure. At the same time, it will be required under the Bill to refer the person's name to the Secretary of State. I fully accept that the Secretary of State will not proceed to a provisional listing of that person unless he is satisfied that there is at least a prima facie case of misconduct
The organisation should not be encouraged to be trigger-happy as regards the referral process. If it refers someone's name to the Secretary of State, it should at least be persuaded at that juncture that, on the balance of the information available to it, there is a real case for that individual to answer. But that is not what paragraph (d) states. The threshold for referral is a great deal lower than elsewhere in the clause; and I am worried about that.
Before the noble Lord accuses me of not understanding the clause, I believe I know the reason that the paragraph has been included in the Bill. It is to cover the case of someone who, as soon as the shadow of suspicion falls on him in his place of work, applies for another job intending to do a runner from his present employer before he is brought to book. When that individual is suspended or provisionally transferred within the organisation, and before an internal investigation of the allegations against him commences, he knows that time is not on his side. I entirely understand why the noble Lord believes that one should minimise the risk of such a person slipping through the net and securing alternative employment. However, my question to him is this: what will constitute a prima facie case for the Secretary of State in these circumstances?
The suspension of an individual, and no more than that, is the trigger for a referral. The Secretary of State is unlikely to have anything more solid in front of him than an unsubstantiated allegation on which to make his judgment. If he tries to look beyond that, he will be prejudging the organisation's decision on whether the person's suspension should be upheld.
Some unsubstantiated allegations have a good deal of credence to them, as we all know. Much will depend on how and by whom they are made. However, in general, I do not believe that an unsubstantiated allegation, which might have led to an immediate and automatic suspension, should constitute sufficient grounds for the Secretary of State to decide to place someone's name on the provisional list. There should be more than that. The danger of having suspension as the trigger here is that we are encouraging referrals in circumstances where it is not obvious that there is a case to answer. Therefore, I wonder whether the wording in this part of the clause is appropriate. I beg to move.
Lord Meston: Like the noble Earl, Lord Howe, I try to envisage the situation that is contemplated by Clause 2 (2)(d). The situation in which an individual jumps before he is pushed is covered by Clause 2(2)(b) and therefore one is left wondering what, in practical reality, will be covered by Clause 2(2)(d).
It may be the limited circumstances in which someone is suspended, but manages to draw out the suspension procedure such that he is still technically employed and
Page 2, line 8, leave out paragraph (d).
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